About this republication - ACT Legislation RegisterAuthorised by the ACT Parliamentary Counsel—also accessible at About this republication The republished law This is a republication

Australian Capital Territory

Mutual Recognition (Australian Capital Territory) Act 1992 A1992-66

Republication No 2

Effective: 12 April 2007

Republication date: 12 April 2007

Last amendment made by A2007-3 Authorised by the ACT Parliamentary Counsel

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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

About this republication

The republished law

This is a republication of the Mutual Recognition (Australian Capital Territory) Act 1992 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 12 April 2007. It also includes any amendment, repeal or expiry affecting the republished law to 12 April 2007.

The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.

Kinds of republications

The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au):

authorised republications to which the Legislation Act 2001 applies

unauthorised republications.

The status of this republication appears on the bottom of each page.

Editorial changes

The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.

This republication includes amendments made under part 11.3 (see endnote 1).

Uncommenced provisions and amendments

If a provision of the republished law has not commenced or is affected by an uncommenced

amendment, the symbol U appears immediately before the provision heading. The text of the uncommenced provision or amendment appears only in the last endnote.

Modifications

If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see Legislation Act 2001, section 95.

Penalties

The value of a penalty unit for an offence against this republished law at the republication date is—

(a) if the person charged is an individual—$100; or

(b) if the person charged is a corporation—$500.


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Mutual Recognition (Australian Capital Territory) Act 1992

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contents 1




Contents Page

1 Name of Act 2

2 Dictionary 2

2A Notes 2

3 Expiry of Act 2

4 Meaning of Commonwealth Act 3

5 Request for Commonwealth legislation 3

6 Approval of amendments 4

7 Regulations for temporary exemptions for goods 4

Schedule 1 5

Part 1 Preliminary 1 Short title 6

Contents

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2 Commencement 6

3 Principal purpose 6

4 Interpretation 6

5 Application of this Act to States 8

6 Operation of this Act 8

7 Crown bound 8

Part 2 Goods 8 Mutual recognition 9

9 Entitlement to sell goods 9

10 Requirements that do not need to be complied with 9

11 Requirements that do need to be complied with 10

12 Defences to offences regarding sale 11

13 Goods that comply with local law 12

14 Permanent exemptions 12

15 Temporary exemptions 13

Part 3 Occupations

Division 1 Preliminary

16 Mutual recognition 14

17 Entitlement to carry on occupation 14

18 Application of this part 15

Division 2 Entitlement to registration

19 Notification to local registration authority 15

20 Entitlement to registration and continued registration 17

21 Action following notice 18

22 Postponement of registration 18

23 Refusal of registration 19

24 Notification of decision 20

Division 3 Interim arrangements

25 Deemed registration 20

26 Duration of deemed registration 20

27 Activities under deemed registration 21

Contents

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Division 4 Equivalent occupations

28 Equivalent occupations 23

29 General principle 23

30 Declarations as to equivalent occupations 23

31 Declarations by Tribunal 24

32 Declarations by Ministers 25

Division 5 General provisions

33 Disciplinary action 25

34 Review of decisions 26

35 Costs 27

36 Residence or domicile 27

37 Furnishing information 27

38 Receiving information 28

39 General responsibilities of local registration authorities 28

40 Fees 28

41 Formalities requiring personal attendance 29

42 Saving 29

Part 4 General 43 References to participating jurisdictions 30

44 Application of mutual recognition principle 30

45 Machinery provisions regarding limitations etc 30

46 Determining place of production 31

47 Amendment of schedules 31

Dictionary 36

Endnotes

1 About the endnotes 37

2 Abbreviation key 37

3 Legislation history 38

Contents

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4 Amendment history 38

5 Earlier republications 39

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An Act relating to the recognition of regulatory standards adopted in Australia regarding goods and occupations

Section 1

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1 Name of Act

This Act is the Mutual Recognition (Australian Capital Territory) Act 1992.

2 Dictionary

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘Commonwealth Act—see section 4.’ means that the term ‘Commonwealth Act’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

2A Notes

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

3 Expiry of Act

(1) The Chief Minister may, in writing, fix a day when this Act expires.

(2) If the Chief Minister fixes a day under subsection (1), this Act expires on that day.

(3) An instrument under subsection (1) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act 2001.




Section 4

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4 Meaning of Commonwealth Act

Commonwealth Act means the Act of the Parliament of the Commonwealth, enacted as referred to in section 5 (1), and as amended and in force from time to time.

5 Request for Commonwealth legislation

(1) The Legislative Assembly requests the enactment by the Parliament of the Commonwealth of an Act in, or substantially in, the terms set out in schedule 1 and, subject to subsection (2), the continuation in force of the Act when so enacted.

(2) The Legislative Assembly requests the Parliament of the Commonwealth to amend the Commonwealth Act (other than the schedules) but only in terms which are approved by the designated person for each of the then participating jurisdictions.

(3) For this section, a participating jurisdiction is—

(a) a State for which there is in force an Act of its Parliament that refers to the Parliament of the Commonwealth, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, matters to which the schedule relates, or that adopts the Commonwealth Act, under the Commonwealth Constitution, section 51 (xxxvii); or

(b) the Territory or the Northern Territory (while there is in force an Act of the Legislative Assembly of the Northern Territory that requests the Parliament of the Commonwealth to enact the Commonwealth Act or that enables the Commonwealth Act to apply in relation to the Northern Territory).

(4) For this section, the designated person for the Territory is the Chief Minister, for a State is the Governor and for the Northern Territory is the Administrator.

Section 6


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6 Approval of amendments

(1) For section 5 (2), the Chief Minister may, in writing, approve the terms of amendments of the Commonwealth Act.

(2) An approval is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act 2001.

7 Regulations for temporary exemptions for goods

Without limiting any other power to make regulations under any other Act, the Executive may make regulations for the purposes mentioned in the Commonwealth Act, section 15.


Schedule 1

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Schedule 1 (see s 5 (1))

Mutual Recognition Bill 1992

A Bill for

An Act to provide for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations

The Parliament of Australia enacts:

Schedule 1 Mutual Recognition Bill 1992 Part 1 Preliminary

Clause 1


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Part 1 Preliminary

1 Short title

This Act may be cited as the Mutual Recognition Act 1992.

2 Commencement

The provisions of this Act commence on a day or days to be fixed by Proclamation.

3 Principal purpose

The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.

4 Interpretation

(1) In this Act unless the contrary intention appears:

conditions, when used in relation to occupations, means conditions, limitations or restrictions.

deemed registration means deemed registration as defined in section 25.

equivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.

goods means goods of any kind, and includes:

(a) animals; or

Mutual Recognition Bill 1992 Schedule 1 Preliminary Part 1

Clause 4


page 7


(b) a package containing goods; or

(c) a label attached to goods.

grant, when used in relation to registration, means grant, issue or otherwise confer registration.

import means import from outside Australia.

labelling of goods includes any means by which, at the point of sale, information is attached to goods or is displayed in relation to goods without being attached to them.

local registration authority of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on of that occupation in the State.

occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted.

participating jurisdiction has the meaning given by section 43.

produce includes to manufacture, and also includes to harvest or otherwise produce in the course of any form of primary production.

registration includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for the carrying on of an occupation.

requirements, when used in relation to goods, means requirements, prohibitions, restrictions or conditions.

Schedule 1 Mutual Recognition Bill 1992 Part 1 Preliminary

Clause 5


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sell includes sell by wholesale or retail, and includes distribute for sale, expose or offer for sale or have in possession for sale or agree to sell, and includes barter, and includes supply by way of exchange, lease, hire or hire-purchase.

State includes the Australian Capital Territory or the Northern Territory.

substantive registration means registration under a law of a State, but does not include deemed registration.

Tribunal means the Administrative Appeals Tribunal.

(2) This Act is to be interpreted in accordance with the Acts Interpretation Act 1901 as in force at the date on which this Act receives the Royal Assent.

5 Application of this Act to States

(1) This Act applies to a State, but only while it is a participating jurisdiction.

(2) Accordingly, a reference in this Act to a State is a reference to a State that is a participating jurisdiction.

6 Operation of this Act

(1) Nothing in this Act affects the operation of any other law of the Commonwealth.

(2) This Act does not limit the operation of a law of a State so far as it can operate concurrently with this Act.

7 Crown bound

Subject to section 5, this Act binds the Crown in right of the Commonwealth and of each of the States.

http://www.comlaw.gov.au/Series/C1901A00002�


Mutual Recognition Bill 1992 Schedule 1 Goods Part 2

Clause 8


page 9


Part 2 Goods

8 Mutual recognition

(1) The mutual recognition principle as applying to goods is as set out in this part.

(2) This part deals with goods produced in or imported into a State and their sale in another State.

(3) In this part, the firstmentioned State is called the first State, and the other State is called the second State.

9 Entitlement to sell goods

The mutual recognition principle is that, subject to this part, goods produced in or imported into the first State, that may lawfully be sold in that State either generally or in particular circumstances, may, by virtue of this Act, be sold in the second State either generally or in particular circumstances (as the case may be), without the necessity for compliance with further requirements as described in section 10.

10 Requirements that do not need to be complied with

The further requirements referred to in section 9 are any one or more of the following requirements relating to sale that are imposed by or under the law of the second State:

(a) a requirement that the goods satisfy standards of the second State relating to the goods themselves, including for example requirements relating to their production, composition, quality or performance;

(b) a requirement that the goods satisfy standards of the second State relating to the way the goods are presented, including for example requirements relating to their packaging, labelling, date stamping or age;

Schedule 1 Mutual Recognition Bill 1992 Part 2 Goods

Clause 11


R2


(c) a requirement that the goods be inspected, passed or similarly dealt with in or for the purposes of the second State;

(d) a requirement that any step in the production of the goods not occur outside the second State;

(e) any other requirement relating to sale that would prevent or restrict, or would have the effect of preventing or restricting, the sale of the goods in the second State.

11 Requirements that do need to be complied with

(1) The mutual recognition principle is subject to the exceptions specified in this section.

(2) The first exception is that the principle does not affect the operation of any laws of the second State that regulate the manner of the sale of goods in the second State or the manner in which sellers conduct or are required to conduct their business in the second State (including laws set out in the examples below), so long as those laws apply equally to goods produced in or imported into the second State.

Examples

Laws relating to the following:

(a) the contractual aspects of the sale of goods;

(b) the registration of sellers or other persons carrying on occupations;

(c) the requirement for business franchise licences;

(d) the persons to whom goods may or may not be sold;

(e) the circumstances in which goods may or may not be sold.

(3) The second exception is that the principle does not affect the operation of any laws of the second State regarding the transportation, storage or handling of goods within the State, so long as—


Clause 12


page 11


(a) those laws apply equally to goods produced in or imported into the second State; and

(b) those laws are directed at matters affecting health and safety of persons in the second State or at preventing, minimising or regulating environmental pollution (including air, water, noise or soil pollution) in the second State.

(4) The third exception is that the principle does not affect the operation of any laws of the second State regarding the inspection of goods within the State, so long as—

(a) inspection or the requirement for inspection is not a prerequisite to the sale of the goods in the second State; and

(b) those laws apply equally to goods produced in or imported into the second State; and

(c) those laws are directed at matters affecting the health and safety of persons in the second State or at preventing, minimising or regulating environmental pollution (including air, water, noise or soil pollution) in the second State.

12 Defences to offences regarding sale

(1) It is a defence to a prosecution for an offence against a law of the second State in relation to the sale of any goods if the defendant expressly claims that the mutual recognition principle applies and establishes that—

(a) the goods were labelled at the point of sale with a statement to the effect that the goods were produced in or imported into the first State; and

(b) the defendant had no reasonable grounds for suspecting that they were not so produced or imported.

Schedule 1 Mutual Recognition Bill 1992 Part 2 Goods

Clause 13


R2


(2) The defence is not available if the prosecution proves that the mutual recognition principle did not apply in the circumstances of the alleged offence (because for example the goods did not comply with requirements imposed by the law of the first State).

(3) Any relevant presumptions or evidentiary procedures under the law of the first State are available to the prosecution or defendant in relation to matters sought to be proved by the prosecution under subsection (2).

(4) Any relevant defences under the law of the first State are available to the defendant in relation to matters sought to be proved by the prosecution under subsection (2).

(5) This section does not affect any defence that is available apart from this section.

13 Goods that comply with local law

(1) Nothing in this part prevents goods from being sold in the second State if (apart from this Act) they comply with the relevant requirements imposed by or under the law of the second State.

(2) Nothing in this part requires the labelling of goods as mentioned in section 12 if (apart from this Act) they comply with the relevant requirements imposed by or under the law of the second State.

14 Permanent exemptions

(1) This part does not apply to goods that are specified in schedule 1.

(2) This part does not affect the operation of laws described in schedule 2.

(3) Unless otherwise stated in schedule 2, a law described in that schedule includes any amendment or replacement of that law,


Clause 15


page 13


but only to the extent that the amendment or replacement deals with the same subject matter.

15 Temporary exemptions

(1) This part does not apply to the sale in the second State of goods, or affect laws of the second State, for the time being declared by or under an Act or regulation of the State to be goods or laws to which this section applies.

(2) Any such exemptions have effect only if they are substantially for the purpose of protecting the health and safety of persons in the State or preventing, minimising or regulating environmental pollution (including air, water, noise or soil pollution) in the State.

(3) No such exemption operates (together with the period of any previous exemption) for longer than a period of 12 months or an aggregate period of 12 months.

Schedule 1 Mutual Recognition Bill 1992 Part 3 Occupations Division 1 Preliminary

Clause 16


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Part 3 Occupations

Division 1 Preliminary

16 Mutual recognition

(1) The mutual recognition principle as applying to occupations is as set out in this part.

(2) This part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.

(3) In this part, the firstmentioned State is called the first State, and the other State is called the second State.

17 Entitlement to carry on occupation

(1) The mutual recognition principle is that, subject to this part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation—

(a) to be registered in the second State for the equivalent occupation; and

(b) pending such registration, to carry on the equivalent occupation in the second State.

(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws—

(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

Mutual Recognition Bill 1992 Schedule 1 Occupations Part 3

Entitlement to registration Division 2

Clause 18


page 15


(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

18 Application of this part

(1) This part applies to individuals and occupations carried on by them.

(2) This part extends to an occupation carried on by an individual, where the individual is subject to more than one system of registration or more than one local registration authority in a State, and accordingly this part applies in relation to each such system of registration and each such authority.

(3) Without limiting subsection (2), an example of such an occupation is that of a legal practitioner, which involves both the admission as a legal practitioner by a court and the issue of a practising certificate by another body.

Division 2 Entitlement to registration

19 Notification to local registration authority

(1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.

(2) The notice must—

(a) state that the person is registered for the occupation in the first State and specify that State; and

(b) state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and

Schedule 1 Mutual Recognition Bill 1992 Part 3 Occupations Division 2 Entitlement to registration

Clause 19


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(c) specify all the States in which the person has substantive registration for equivalent occupations; and

(d) state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and

(e) state that the person’s registration in any State is not cancelled or currently suspended as a result of disciplinary action; and

(f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and

(g) specify any special conditions to which the person is subject in carrying on any such occupation in any State; and

(h) give consent to the making of inquiries of, and the exchange of information with, the authorities of any State regarding the person’s activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice.

(3) The notice must be accompanied by a document that is either the original or a copy of the instrument evidencing the person’s existing registration (or, if there is no such instrument, by sufficient information to identify the person and the person’s registration).

(4) As regards the instrument evidencing the person’s existing registration, the person must certify in the notice that the accompanying document is the original or a complete and accurate copy of the original.



Clause 20


page 17


(5) The statements and other information in the notice must be verified by statutory declaration.

(6) The local registration authority may permit the notice to be amended after it is lodged.

20 Entitlement to registration and continued registration

(1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.

(3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.

(4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws—

(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

(5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this part, unless they are conditions that apply to the person’s registration in the first

Schedule 1 Mutual Recognition Bill 1992 Part 3 Occupations Division 2 Entitlement to registration

Clause 21


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State or that are necessary to achieve equivalence of occupations.

(6) This section has effect subject to this part.

21 Action following notice

(1) Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.

(2) When granted, registration takes effect as from the date the notice was lodged.

(3) However, the local registration authority may, subject to this part and within one month after the notice was lodged, postpone or refuse the grant of registration.

(4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.

22 Postponement of registration

(1) A local registration authority may postpone the grant of registration, if—

(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or

(b) any document or information as required by section 19 (3) has not been provided or is materially false or misleading; or



Clause 23


page 19


(c) the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or

(d) the authority decides that the occupation in which registration is sought is not an equivalent occupation.

(2) If the grant of registration has been postponed, the local registration authority may in due course grant or refuse the registration.

(3) The local registration authority may not postpone the grant of registration for longer than a period of 6 months, and the person is entitled to registration immediately, at the end of that period, unless registration was refused at or before the end of that period.

(4) Nothing in subsection (3) prevents earlier registration from being granted on a review by the Tribunal.

23 Refusal of registration

(1) A local registration authority may refuse the grant of registration, if—

(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or

(b) any document or information as required by section 19 (3) has not been provided or is materially false or misleading; or

(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.

Schedule 1 Mutual Recognition Bill 1992 Part 3 Occupations Division 3 Interim arrangements

Clause 24 Notification of decision


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(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.

24 Notification of decision

A local registration authority must give the person who lodges a notice in accordance with section 19 a notice in writing of its decision to grant registration, or to postpone or refuse the grant of registration, or to impose conditions on registration.

Division 3 Interim arrangements

25 Deemed registration

(1) A person who lodges a notice under section 19 with a local registration authority of a State is, pending the grant or refusal of registration, taken to be registered as provided in section 20.

(2) Such registration is called deemed registration in this Act.

(3) Deemed registration in one State does not of itself provide a basis for registration in another State.

26 Duration of deemed registration

(1) A person’s deemed registration in the second State continues until it is cancelled or suspended or otherwise ceases in accordance with this part.

(2) A person’s deemed registration in the second State ceases if the person becomes substantively registered in the State in connection with the occupation concerned.


Interim arrangements Division 3

Clause 27


page 21


(3) A person’s deemed registration in the second State ceases if the local registration authority of the State refuses to grant registration, subject to any determination of the Tribunal.

(4) A person’s deemed registration in the second State ceases if the person ceases to be substantively registered in every other State mentioned in the notice as required by section 19 (2) (c).

(5) A local registration authority of the second State may cancel a person’s deemed registration in the second State if the person requests cancellation.

(6) Deemed registration is not affected by postponement of the grant of substantive registration.

27 Activities under deemed registration

(1) A person who has deemed registration in the second State may carry on the occupation in the second State as if the deemed registration were substantive registration in the second State.

(2) However, the person may do so only—

(a) within the limits conferred by the person’s substantive registration in the first State; and

(b) within the limits conferred by the person’s deemed registration in the second State; and

(c) subject to any conditions or undertakings applying to the person’s registration in the first State, unless waived by the local registration authority of the second State under this section; and

(d) subject to any conditions applying to the person’s deemed registration.

(3) Without limiting anything in this division—

Schedule 1 Mutual Recognition Bill 1992 Part 3 Occupations Division 4 Equivalent occupations

Clause 28


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(a) the person may not carry on the occupation in the second State without complying with any requirements regarding insurance, fidelity funds, trust accounts and the like that are designed to protect the public, clients, customers or others; and

(b) a person who has deemed registration in an occupation in the second State is subject to any disciplinary provisions and arrangements that are applicable to persons who are substantively registered in that State; and

(c) references in the law of the second State to persons registered in an occupation under the law of that State (however expressed) extend to persons who have deemed registration for the occupation under this Act.

(4) However, the local registration authority of the second State may waive any condition imposed under the law of the first State, or any undertaking given to the local registration authority of the first State, if it thinks it appropriate in the circumstances.

(5) The local registration authority of the second State may impose conditions as if deemed registration were substantive registration, but it must not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this part, unless they correspond to conditions or undertakings that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.


Equivalent occupations Division 4

Clause 28


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Division 4 Equivalent occupations

28 Equivalent occupations

The equivalence of occupations carried on in different States is to be determined in accordance with this part.

29 General principle

(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).

(2) Conditions may be imposed on registration under this part so as to achieve equivalence between occupations in different States.

(3) This section has effect subject to any relevant declarations in force under this division.

30 Declarations as to equivalent occupations

(1) This part is to be given effect in accordance with relevant declarations (if any) made under this division regarding equivalent occupations.

(2) If a declaration made by the Tribunal and a declaration made by Ministers are inconsistent, the ministerial declaration prevails.

(3) A declaration under this part does not affect the registration of any person already registered (except in the case of a declaration made by the Tribunal in relation to that person specifically).

Schedule 1 Mutual Recognition Bill 1992 Part 3 Occupations Division 4 Equivalent occupations

Clause 31 Declarations by Tribunal


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31 Declarations by Tribunal

(1) On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation, and may specify or describe conditions that will achieve equivalence.

(2) On such a review, the Tribunal may make a declaration that occupations carried on in two States are not equivalent, but only if the Tribunal is satisfied that—

(a) the activities involved in the occupations are not substantially the same (even with the imposition of conditions); or

(b) registration in one State should not entitle registered persons to carry on a particular activity or class of activity in the other State, where—

(i) the activity or class of activity is a material part of the practice of a person registered in the first State for the occupation; and

(ii) the activity or class of activity, if carried out by a person not conforming to the appropriate standards, could reasonably be expected to expose persons in the other State to a real threat to their health or safety or could reasonably be expected to cause significant environmental pollution (including air, water, noise or soil pollution); and

(iii) it is not practicable to protect the health or safety of such persons from that threat or the environment from such pollution by regulating the manner in which services in the occupation are provided.


General provisions Division 5

Clause 32


page 25


(3) The Registrar or other proper officer of the Tribunal must cause a notice setting out the terms of a declaration under this section to be promptly published in the Gazette.

(4) A declaration made on the basis of paragraph (2) (b) has effect for no longer than 12 months, and the local registration authority must promptly notify appropriate authorities in each other State and the Commonwealth of the declaration.

(5) The local registration authority is to give effect to the decision on the review, and must thereafter act in conformity with the decision in relation to other persons seeking registration.

32 Declarations by Ministers

(1) A Minister from each of two or more States may jointly declare, by notice in the Gazette, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence.

(2) The declaration may be amended or rescinded in the same way.

(3) The declaration has effect only in relation to the States concerned.

(4) The appropriate local registration authority is to give effect to the declaration.

Division 5 General provisions

33 Disciplinary action

(1) If a person’s registration in an occupation in a State—

(a) is cancelled or suspended; or

(b) is subject to a condition;

on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person’s

Schedule 1 Mutual Recognition Bill 1992 Part 3 Occupations Division 5 General provisions

Clause 34 Review of decisions


R2


registration in the equivalent occupation in another State is affected in the same way.

(2) However, the local registration authority of the other State may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances.

(3) This section extends to registration effected apart from this Act.

(4) This section has effect despite any other provisions of this part.

34 Review of decisions

(1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act.

(2) In subsection (1):

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

(3) If a local registration authority gives a person written notice of the making of a decision referred to in subsection (1), the notice must include a statement to the effect that—

(a) subject to the Administrative Appeals Tribunal Act 1975, application for review of the decision may be made to the Tribunal by a person whose interests are affected by the decision; and

(b) except where subsection 28 (4) of that Act applies, application may be made in accordance with section 28 of that Act by or on behalf of that person for a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision.







Clause 35


page 27


(4) Any failure to comply with a requirement of subsection (3) does not affect the validity of the decision.

35 Costs

The Tribunal may order a party in proceedings before it to pay costs if the party has acted unreasonably.

36 Residence or domicile

Residence or domicile in a particular State is not to be a prerequisite for or a factor in entitlement to the grant, renewal or continuation of registration arising under this part.

37 Furnishing information

(1) A local registration authority of a State must furnish without delay any information reasonably required by a local registration authority of another State about a person substantively registered under a law of the firstmentioned State.

(2) The obligation imposed under this section does not apply unless the authority of the other State notifies the authority of the firstmentioned State that the information is required in connection with—

(a) a notice lodged by a person seeking registration; or

(b) a person’s deemed registration; or

(c) actual or possible disciplinary action against the person.

(3) The authority of the firstmentioned State is empowered to provide the information, despite any law relating to secrecy or confidentiality.

(4) Nothing in this section affects any obligation or power to provide information apart from this section.

Schedule 1 Mutual Recognition Bill 1992 Part 3 Occupations Division 5 General provisions

Clause 38


R2


38 Receiving information

If a local registration authority receives information under section 37, the information is subject to any law relating to secrecy or confidentiality that would apply if the information were provided under the law of the State under which the authority is constituted or exercises its functions.

39 General responsibilities of local registration authorities

(1) It is the duty of each local registration authority to facilitate the operation of this part in relation to the occupations for which the authority is responsible, and in particular to make use of the power to impose conditions in such a way as to promote the mutual recognition principle.

(2) It is the duty of each local registration authority to prepare and make available guidelines and information regarding the operation of this part in relation to the occupations for which the authority is responsible.

(3) The first such guidelines and information are to be available within 6 months after the commencement of this section.

40 Fees

(1) A local registration authority has power to impose fees in relation to substantive or deemed registration or the continuance of registration arising under this part, but any such fees may not be greater than are applicable for registration apart from this part.

(2) Nothing in this section prevents the fixing or prescribing of fees referred to in this section under any other law of a State, but the fees may not be greater than can be imposed under this section.



Clause 41


page 29


(3) The local registration authority may impose a condition on substantive or deemed registration arising under this part to the effect that a person may not carry out activities under registration unless a fee or other payment has been paid, but such a condition may not be imposed unless it corresponds to a requirement attaching to registration apart from this part.

(4) This section does not authorise the imposition of a tax.

41 Formalities requiring personal attendance

(1) Neither substantive or deemed registration, nor entitlement to registration, under this part requires compliance with any statutory or other formalities requiring personal attendance in the second State.

(2) This section applies to formalities that would otherwise have to be complied with before, at or after registration.

42 Saving

Nothing in this part prevents a person from seeking registration or being registered for an occupation under a law apart from this part.

Schedule 1 Mutual Recognition Bill 1992 Part 4 General

Clause 43


R2


Part 4 General

43 References to participating jurisdictions

For the purposes of this Act, a participating jurisdiction is—

(a) a State (other than a Territory) for which there is in force an Act of its Parliament that refers to the Parliament of the Commonwealth the power to enact this Act, or that adopts this Act, under paragraph (xxxvii) of section 51 of the Commonwealth Constitution; or

(b) a Territory (being the Australian Capital Territory or the Northern Territory) for which there is in force an Act of its legislature that requests the Parliament of the Commonwealth to enact this Act or that enables this Act to apply in relation to it.

44 Application of mutual recognition principle

(1) The mutual recognition principle and the provisions of this Act may be taken into consideration in proceedings of any kind and for any purpose.

(2) Nothing in this Act prevents a person from relying on the mutual recognition principle in relation to more than two States.

45 Machinery provisions regarding limitations etc

In cases where part 3 provides that conditions or undertakings that apply or are relevant to registration in the first State also apply or are relevant to registration in the second State, they are to be construed with any necessary adaptations, including the following (where appropriate and so far as practicable):

(a) references to the first State are to be read as references to the second State;

Mutual Recognition Bill 1992 Schedule 1 Permanent exemptions: goods Schedule 1

Clause 46


page 31


(b) references to officers or authorities of the first State are to be read as references to the corresponding officers or authorities of the second State.

46 Determining place of production

(1) For the purpose of determining where goods are produced for the purposes of this Act, goods are taken to be produced in the State where the most recent step has occurred in the process of producing the goods (including for example processing, harvesting or packaging the goods).

(2) Subsection (1) applies even though—

(a) the process of production may be incomplete; or

(b) some steps in the process have not yet been carried out; or

(c) some steps in the process were carried out elsewhere, whether in another State or outside Australia; or

(d) the goods or a component of the goods were imported.

47 Amendment of schedules

(1) The Governor-General may make regulations amending the schedules.

(2) No such regulation may be made unless the designated person for each of the then participating jurisdictions has published a notice in the official gazette of the jurisdiction setting out the terms of the proposed regulation and requesting that it be made.

(3) For the purposes of this section, the designated person for a State is the Governor, for the Australian Capital Territory is the Chief Minister and for the Northern Territory is the Administrator.

Schedule 1 Mutual Recognition Bill 1992 Schedule 1 Permanent exemptions: goods


R2


Schedule 1 Permanent exemptions: goods

(see s 14 and s 47)

1 Firearms and other prohibited or offensive weapons

2 Fireworks

3 Gaming machines

4 Pornographic material

Mutual Recognition Bill 1992 Schedule 1 Permanent exemptions: laws relating to goods Schedule 2


page 33


Schedule 2 Permanent exemptions: laws relating to goods

(see s 14 and s 47)

1 A law of a State relating to quarantine, to the extent that—

(a) the law (or a direction or instrument given or made under the law or some other action taken under the law) regulates or prohibits the bringing of specified goods into the State or into a defined area of the State; and

(b) the State or area is substantially free of a particular disease, organism, variety, genetic disorder or any other similar thing; and

(c) it is reasonably likely that the goods would introduce or substantially assist the introduction of the disease, organism, variety, disorder or other thing into the State or area; and

(d) it is reasonably likely that that introduction would have a long-term and substantially detrimental effect on the whole or any part of the State.

2 A law of a State to the extent that it is enacted or made substantially for the purpose of protecting a species or other class of animals or plants from extinction in the State and that it prohibits or restricts the possession, sale, killing or capture of animals or plants of that species or other class in the State.

3 Ozone Protection Act 1991 of the Australian Capital Territory.

4 Weapons Act 1991 of the Australian Capital Territory.

5 Ozone Protection Act 1989 of New South Wales.

6 Clean Air Act 1963-1990 of Queensland, part IVA.



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Schedule 1 Mutual Recognition Bill 1992 Schedule 2 Permanent exemptions: laws relating to goods


R2


7 Hazardous Substances (Chlorofluorocarbons and Other Ozone Layer Depleting Substances) Regulations 1988 under the Health Act 1937-1988 of Queensland.

8 Beverage Container Act, 1975 of South Australia.

9 Clean Air Act, 1984 of South Australia, part IIIA.

10 A law of Tasmania to the extent that it relates to the possession, sale or capture of abalone, crayfish or scallops of a certain minimum size.

11 Chlorofluorocarbons and other Ozone Depleting Substances Control Act 1988 of Tasmania.

12 Environment Protection Act 1970 of Victoria, section 16 (in relation to ozone depleting substances), section 41 (2) (d) and section 71 (1) (gba).

13 Environmental Protection Regulations 1987 under the Environmental Protection Act 1986 of Western Australia.

14 Business Franchise ("X" Videos) Act 1990 of the Australian Capital Territory.

15 Classification of Publications Ordinance 1983 of the Australian Capital Territory.

16 Crimes Act 1900 of the Australian Capital Territory, section 65.

17 Film Classification Act 1971 of the Australian Capital Territory.

18 Publications Control Act 1989 of the Australian Capital Territory.

19 Film and Video Tape Classification Act 1984 of New South Wales.

20 Indecent Articles and Classified Publications Act 1975 of New South Wales.

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Mutual Recognition Bill 1992 Schedule 1 Permanent exemptions: laws relating to goods Schedule 2


page 35


21 Classification of Publications and Films Act of the Northern Territory.

22 Classification of Films Act 1991 of Queensland.

23 Classification of Publications Act 1991 of Queensland.

24 Classification of Films for Public Exhibition Act, 1971 of South Australia and regulations under that Act.

25 Classification of Publications Act, 1974 of South Australia and regulations under that Act.

26 Summary Offences Act, 1953 of South Australia, section 33 and section 35.

27 Classification of Publications Act 1984 of Tasmania.

28 Classification of Films and Publications Act 1990 of Victoria.

29 Censorship of Films Act 1947 of Western Australia.

30 Indecent Publications and Articles Act 1902 of Western Australia.

31 Video Tapes Classification and Control Act 1987 of Western Australia.

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Dictionary


Effective: 12/04/07

R212/04/07


Dictionary (see s 2)

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

ACT

Chief Minister

Commonwealth

the Territory.

Commonwealth Act—see section 4.



Endnotes

About the endnotes 1

R2 12/04/07


Effective: 12/04/07

page 37


Endnotes

1 About the endnotes Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.

Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.

Uncommenced amending laws and expiries are listed in the legislation history and the amendment history. These details are underlined. Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.

If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.

The endnotes also include a table of earlier republications.

2 Abbreviation key

am = amended ord = ordinance amdt = amendment orig = original ch = chapter par = paragraph/subparagraph def = definition pres = present dict = dictionary prev = previous disallowed = disallowed by the Legislative (prev...) = previously

Assembly pt = part div = division r = rule/subrule exp = expires/expired renum = renumbered Gaz = gazette reloc = relocated hdg = heading R[X] = Republication No IA = Interpretation Act 1967 RI = reissue ins = inserted/added s = section/subsection LA = Legislation Act 2001 sch = schedule LR = legislation register sdiv = subdivision LRA = Legislation (Republication) Act 1996 sub = substituted mod = modified/modification SL = Subordinate Law o = order underlining = whole or part not commenced om = omitted/repealed or to be expired


Endnotes

3 Legislation history


Effective: 12/04/07

R212/04/07


3 Legislation history

Mutual Recognition (Australian Capital Territory) Act 1992 A1992-66 notified 1 December 1992 (Gaz 1992 No S208) s 1, s 2 commenced 1 December 1992 (s 2 (1)) remainder commenced 25 February 1993 (s 2 (2) and Gaz 1993 No S24)

as amended by

Legislation (Consequential Amendments) Act 2001 A2001-44 pt 252 notified 26 July 2001 (Gaz 2001 No 30) s 1, s 2 commenced 26 July 2001 (IA s 10B) pt 252 commenced 12 September 2001 (s 2 and see Gaz 2001 No S65)

Statute Law Amendment Act 2007 A2007-3 sch 3 pt 3.68 notified LR 22 March 2007 s 1, s 2 taken to have commenced 1 July 2006 (LA s 75 (2)) sch 3 pt 3.68 commenced 12 April 2007 (s 2 (1))

4 Amendment history

Name of Act s 1 sub A2007-3 amdt 3.371

Dictionary s 2 om A2001-44 amdt 1.2891 ins A2007-3 amdt 3.372

Notes s 2A ins A2007-3 amdt 3.372

Expiry of Act s 3 sub A2001-44 amdt 1.2892

Approval of amendments s 6 om A2001-44 amdts 1.2893-1.2895

Mutual Recognition Bill 1992 sch 1 (prev sch) renum R1 LA

Dictionary dict ins A2007-3 amdt 3.373 def Commonwealth Act ins A2007-3 amdt 3.373

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Endnotes

Earlier republications 5

R2 12/04/07


Effective: 12/04/07

page 39


5 Earlier republications Some earlier republications were not numbered. The number in column 1 refers to the publication order.

Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.

Republication No and date

Effective Last amendment made by

Republication for

R1 20 Feb 2002

20 Feb 2002– 11 Apr 2007

A2001-44 new Act and amendments by A2001-44

© Australian Capital Territory 2007



Documents

About this republication - ACT Legislation RegisterAuthorised by the ACT Parliamentary Counsel—also accessible at About this republication The republished law This is a republication